What Attorneys Can and Can’t Do

A Lasting Power of Attorney (LPA) is a legal form that allows a person (called the donor) to choose someone else to manage their affairs for them. The person chosen is known as an attorney. Under an LPA, the person chosen to be an attorney can be a friend, relative or a professional person like a trusted solicitor. The donor will decide who to appoint and how much power they should have over their affairs. It’s worth bearing in mind that more than one person can be chosen to act as an attorney.

Although lasting power of attorney registration is relatively simple, the donor must have full capacity and understanding when executing the LPA. They must understand what they’re signing and what it means. An LPA can only be used once it is registered with the Office of the Public Guardian.

Lasting Powers of Attorney come in two forms: Property and Financial Affairs and Health and Welfare. Both have to be registered before they can be used.

• Property and Financial Affairs LPA: This LPA allows the attorney to manage financial matters such as paying bills, managing bank accounts or selling property.
• Health and Welfare LPA: This LPA enables the attorney to make decisions about the principal’s healthcare, living arrangements and daily care.

The donor may appoint the same attorneys for both types of LPA or different attorneys for each type of LPA. If different attorneys are appointed, they may need to act together on some decisions. For example, the decision about where the donor lives should be taken by the attorneys under the personal welfare LPA. This may involve selling the donor’s property, a decision for the attorneys under the property and affairs LPA.

Provided there are no restrictions within the Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), you can usually do the following:

• Buy and sell property (at market value).
• Maintain and repair their home.
• Rent out the property (although you do need to consider whether once you have paid out income tax, management fees, insurance, general maintenance and repairs, the amount is sufficient for needs).
• Manage bank accounts and pay bills.
• Deal with investments.
• Claim benefits on behalf of the donor for their use.
• Liaise with HMRC regarding tax.
• Purchase items needed for the donor.
• Claim out-of-pocket expenses.
• Make some gifts (there are strict rules around this, so professional advice should be sought based on individual circumstances).

• Make large financial gifts to people.
• Manage discretionary funds with a fund manager.
• Make decisions that relate to health and welfare.
• Pay yourself a fee (unless authorised within the LPA or EPA).
• Mix your finances with theirs; you MUST keep separate bank accounts.
• Use your position to benefit yourself or make personal gains.
• Purchase something from the donor at a below-market rate without the Court of Protection’s authority.
• Tax planning without the Court of Protection’s authority.

It is important to note that you can only act under a Health and Welfare LPA when the donor has lost the capacity to make decisions. If that is the case — and provided there are no restrictions within the LPA — you can usually do the following:

• Decide where the donor lives.
• Make decisions about medical treatments.
• Decide on their day-to-day routine.
• Make decisions about their care.
• Give or refuse authority to life-sustaining treatment (a Health LPA may replace any previous Living Will or Advance Decision to refuse life-sustaining treatment).
• Make decisions in the donor’s best interests.
• Consider what the individual would want.

Important point: If a doctor suggests that they do something (such as exploratory investigations relating to someone who lacks capacity) and you do not want them to do it as you don’t feel it is in the donor’s best interests, you can ask the doctor to refrain from doing so. You can do this in your capacity as a Health and Welfare Attorney. However, you cannot insist that a doctor does something if they do not feel it would benefit the donor.

• Make decisions that restrict the donor’s freedom.
• Make decisions when the donor still has capacity.
• Make assumptions based on age, behaviour, condition or appearance.

We have been looking after the legal affairs of people in Sussex and beyond for over 125 years. When it comes to Lasting Powers of Attorney, you must seek experienced help to ensure that:

• The correct details are completed so that the LPA is valid — a rejection can result in extra costs.
• The proper powers are given to the right people.
• The right information is given about your wishes so your attorney can carry them out properly.

Let’s have a consultation over video call or by telephone to discuss the LPA process, your wishes and how we can put them into effect. Call 01273 604123 or fill out the enquiry form to the right to get started.